What is the Process?

The object of mediation is to assist the parties to arrive at a satisfactory solution to their conflict. Of course some parties may have chosen to instruct a solicitor before the mediation, others may even be approaching a court hearing, while a number may have had a hearing adjourned; mediation at any stage is possible as long as both parties are positive about attempting to reach a settlement.

Both parties should accept from the outset that the purpose of dispute resolution is not to achieve a win or triumph over the other. Both parties may need to reformulate their “must win” stance with the aim of achieving a suitable or appropriate settlement.

Mediation resolves disputes fast, it has an extremely high success rate and is less expensive than the legal fees associated with litigation. Parties that mediate avoid the uncertainty of decisions made by the court.

Frequently Asked Questions

Each mediation will obviously differ depending on the needs of the parties. Usually the parties will attend on their own, however, you may wish to attend with a friend, family member or lawyer. The friend, family member, or lawyer may comment where appropriate. However, if the other party feels uncomfortable, inhibited, or intimidated by their attendance, s/he may be asked to remain in another room during any joint discussions.

Before the mediation the mediator should make contact with both parties, get an outline of the dispute and discuss whether mediation is suitable for them. The mediator should not disclose details of the discussion that s/he has had with either party to the other unless s/he has specific permission to do so.

The mediation usually commences with both parties meeting with the mediator together and setting out what their aims/objectives are for the mediation. The parties will then move to separate rooms and the mediator will see each party individually. At this stage the parties are able to speak freely about the dispute and consider any proposals for potential settlement.

It may be that the parties come together at the end of the mediation and reach an agreement.
 

It is not always possible to reach an agreement, particularly on the first occasion. The parties should not see this as a failure. Mediation is never a failure because the parties will have shared the desire to settle and will have been able to identify and clarify areas of dispute. This will ultimately allow them to move forward at a more proactive pace to resolve the dispute.
 
Often where there is no final agreement the parties are still able to identify issues that can be agreed and those that remain. This narrowing of issues relieves emotions and reduces costs. Further, if the matter is to continue to court, time is not wasted on irrelevant matters.

Some parties are able to agree what they think is a good settlement but still wish to obtain legal advice. That is, of course, open for you to do.

Some parties are able to agree that a particular thing should be done first (like building a wall, the returning of an item, or an independent assessment of damage) before the mediation can continue. That is also completely appropriate because mediation is sufficiently flexible for you to do this.

If you are able to agree a satisfactory resolution then the mediator will draft Heads of Agreement. This document sets out clearly what has been agreed between the parties and the terms upon which settlement has been reached. The document will then be signed and dated by the parties and the mediator.

If for some reason the agreement is not effected by either party and the matter is ultimately adjudicated upon by the courts, a Judge will view this document as a binding agreement.

However, there may be occasions where a party asks a Judge to ignore the agreement due to some new information (or existing information subsequently discovered). It is always an available option for a Judge to permit this. The party who seeks to renege from the agreement will have to persuade the court that the new event undermines the agreement to the extent where compliance would lead to an inequitable outcome.

Ultimately the agreement is a powerful document that the courts will attempt to give effect to wherever possible. Therefore, the parties must be clear about the terms of the agreement before they sign. It is always open to a party to seek legal advice before signing the agreement if they require.